We haven't had a separate thread on this case. In light of the opening brief to the 2nd Circuit (posted in the 2A Current Cases thread), I thought I would share some thoughts I have already posted to CalGunsNet and MDShooters (in slightly different forms).

What I am about to say, is going to infuriate some of you. Be that as it may, what I'm about to say is the current state of our system of Constitutional Law.

One of the State cases that is almost always used, as part of the bulwark of the Plaintiffs cases, is In re Brickey. It has not been much explained or expanded upon, as the courts were expected to have read that decision, when referenced (it is very, very short).

This is an Idaho Supreme Court case from back in 1902. At that time, the relevant portion of the Idaho Constitution read: The people have the right to bear arms for their security and defense, but the legislature shall regulate the exercise of this right by law.

When confronted with a case wherein all deadly weapons were banned in cities, the Court took notice of both the Federal Constitution and Idaho's Constitution. They reasoned that while a legislature may regulate the manner of carry (bearing arms), no legislature could pass laws which utterly banned carry. Our Court properly reasoned:

Quote:

Under these constitutional provisions, the legislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho, whether within or without the corporate limits of cities, towns, and villages. The legislature may, as expressly provided in our state constitution, regulate the exercise of this right, but may not prohibit it.

That's pretty strong stuff. It was however, tempered with the following:

Quote:

A statute prohibiting the carrying of concealed deadly weapons would be a proper exercise of the police power of the state. But the statute in question does not prohibit the carrying of weapons concealed, which is of itself a pernicious practice, but prohibits the carrying of them in any manner in cities, towns, and villages. We are compelled to hold this statute void.

This post-bellum decision is completely in accord with the antebellum cases cited by the Heller Court: Nunn; Andrews; Reid and Chandler. This decision puts the lie to the three post-bellum cases that were used to start the "collective rights" theory that has plagued us until the decision in Heller.

Everyone who has been critical of what and why Alan Gura does what he does, needs to thoroughly understand not only what those cases above were saying, but the hurdles Alan has had to jump through, in order to overcome this post-bellum thinking, that still pervades the judiciary and the legislatures, despite what the Heller Court has said.

We have a right to carry functional arms for self defense (in or out of the home). We do not have a right to carry whatever we decide, whenever we decide or even how (open or concealed) we decide. Those questions (if they are indeed questions), were decided very early in our Republic. Legislatures can, do, and will regulate the manner and form of carry. They can do this in complete harmony with constitutional protections of the right to carry.

Such regulation may ban certain forms of carry. But under our Federal Constitution, they cannot defeat all forms of carry. State Constitutions, indeed, State legislatures may provide for greater flexibility (and several do), but not less.

Should the States require a license or permit, it is within its police powers to so require. What is not within those powers is to make the bar so high, that it precludes the common citizen from obtaining that license or permit.

Now the part that will really infuriate some of you.

So-called Constitutional Carry, isn't. Never was and is more than likely never to be. The fact that 4 States have allowed this is not to say that it will meet a constitutional standard for those that don't allow it. Even if all 50 States allowed it, the fact remains that each States legislatures can regulate carry to some (as yet unknown) extent.

State v. Rosenthal? Vermont is an outlier here. It is very much the exception to the rule. An aberration, if you will, as no other State Supreme Court has ever ruled so broadly.

This is what Alan Gura is doing. He is expounding upon what the Court in Heller actually said. He is much more serious in this brief than in his previous writings. If you have read this brief, you will not find the "zingers" that have been his trademark writing (well, to be honest, there were two, but thinly disguised).

His Kachalsky brief is the best he has written yet, to explain what the States can and can't do.

The case that most resembles Kachalski would be Woolard.

That case is currently under submission for cross motions of summary judgment. Judge Legg was very well informed (I'm told by those that were there) at the motions hearing. Most expect a somewhat, if not outright, favorable ruling. But I would think that Judge Legg would do well to read Alan Gura's brief to the 2nd Circuit, before he renders his decision in Woolard, as this is going to be how Alan Gura will attack anything unfavorable from Judge Legg.

If there's a constitutional guarantee of a right to carry in some form, then I wouldn't worry too much about the state's right to regulate it. Right now, states that allow open carry are willing to fight people who practice it because they think they can eventually win. Once everyone knows that open carry is here to stay, they can be pressured into passing concealed carry. They will get sick of complaints from police and members of the public about armed people everywhere, and they will therefore use the typical politician's solution - compel everyone to conceal their weapons to make the complains go away

But they'll never do this as long as they think they still stand a chance of eliminating any form of carry.

Mr. Norris, I understand your point, but I disagree with your conclusion.

It is interesting that, nearly 100 years after Idaho's case, the Ohio state supreme court made a very similar ruling. Like Idaho, Ohio ruled that the legislature may regulate the mode of carry, but because the state's constitution guarantees a right to keep AND BEAR arms, the legislature could not ban carry entirely. The ruling thus established that, since concealed carry was illegal in Ohio, open carry had to be legal.

But -- while I can accept the right of legislatures to "regulate" the bearing of arms, I am not prepared to accept your premise that charging money to allow a citizen to exercise a right is in any way constitutional. If the state wants to keep a record of who's carrying, maybe I can accept that -- if they do it at the state's expense. Charging ME a fee for a license to exercise a right is not regulation -- it's taxation.

But it depends on the state. In a state such as Ohio, and I guess Idaho, those who don't wish to pay the fee can carry openly. In such states I suppose the fee for a concealed carry license passes constitutional muster. However, I live in a state whose constitution (allegedly) guarantees my right to keep and bear arms, yet I am allowed to carry a firearm only if I possess a license from the state. No open carry without license. My state allows NO carry without a license -- which license, naturally, requires paying a fee, undergoing a background check, and requires taking a commercial firearms safety course as a prerequisite.

I do not regard this as "regulation," since without the license I have no (legal) mode of carry available to me.

And how do you propose to fight onerous licensing/permitting when the right to carry has yet to be recognized?

I'm not talking about the way NYC does it. To be sure, should that case be won, then regulations like those in D.C. and Chicago will be next.

But under normal (as in 1A) regulation, such licensing/permitting could not be set so high as to preclude Joe-6-pack. Gura has intimated this in several of his briefs. But it is a passing remark, as the intent of the briefs are to secure carry as a central component to the core right.

Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.

Al, you're right. We may very well get one or more decisions saying loaded open carry is absolutely legal where concealed carry is banned.

And that's cool - we'll take it. Because we know exactly what happens next . That IS what the Ohio Supremes said in, what, 2003, right? And so we did open carry laps around the various capital buildings until we got a CCW system a year later.

Kewl. We can do that again - rinse and repeat as needed.

The real questions arise later in states like Texas, Florida and Oklahoma where open carry is banned but there's a shall-issue CCW system (for money - at least $200 between the background check, fingerprinting, training, etc.). Can they require that much money before the excercise of a constitutional right? Or do they get forced to be more like New Mexico where free-of-cost open carry is an option as is paid-for CCW?

In States where open carry is not regulated but CC is, those fees will probably be ruled as constitutional, regardless of the cost.

It is the states that ban the open carrying of functional firearms (thanks go to the CA legislature for making this easy), and CC is costly (and that includes not just the actual fee for the permit, but all costs associated with securing the permit) that will be the next big battleground. There are tons of case law on licenses and permits:

Quote:

“A license is a mere permit to do something that without it would be unlawful.” Littleton v Burgess, 82 P 864, 866, 14 Wyo 173.

“A license is a right granted by some competent authority to do an act which, without such license, would be illegal.” Beard v City of Atlanta 86 SE 2nd 672, 676; 91 Ga. App. 584.

“A licensee is one privileged to enter or remain on land by virtue of the possessor’s consent, whether given by invitation or permission.” Wool v Larner, 26 A 2nd 89, 92, 112 Vt. 431.

“The licensor has the power to prohibit. Since the licensor is in the position to grant a right or permission it logically follows that he has the power to prohibit the act also. Likewise, having the power to prohibit something from being done, it follows as a corollary that power also exists to permit its use.” Taylor v Smith, 140 Va. 217, 235.

“The power to license necessarily includes the power to inhibit unlicensed persons from doing the acts authorized by license. The power to refuse license necessarily gives the power to limit the issuance of licenses.” Ex parte M.T. Dickey, 76 W. Va.576, 585; 85 SE 781.

“The power to tax the exercise of a privilege is the power to control or suppress its enjoyment... A state may not impose a charge for the enjoyment of a right granted by the federal constitution.” Murdock v. Pennsylvania (1943) 319 U.S. 262.

Without more, States licensing/permitting schemes are going to be restricted, where only one form of carry is allowed and that is regulated by the State.

The cases before Murdock goes to show what licensing is. Murdock goes to show that special taxation (licenses or permits) is extremely limited as regards civil rights.

There are other cases that have been decided that show the State may only charge fees necessary for the completion of the regulatory paperwork. See Kwong, et al v. Bloomberg for other supporting cases (Docket - Thread).

A concern for public safety with respect to guns, knives and clubs was hardly existent at the time the Constitution was conceived. People lived "by the gun" back in the day. Weapons were no big whoop then. If anybody would have mentioned the words "gun permit", most likely they would have been laughed out of town. Heller made it abundantly clear that what a law meant when written is still what it means today. Also bearing is how a law was applied by the courts in the immediately ensuing years after passage. Insofar as the Second Amendment goes, there appears no notable gun regulations related to public safety. Public safety via weaponry is a modern day issue not addressed by The Constitution, and is thereby irrelevant in the current proceedings.

I remain of the opinion that the entire concept of "reasonable" regulation, as applied to the 2nd Amendment, is a modern construct that is totally at odds with the language of the Constitution itself. A regulation -- ANY regulation -- is by definition an infringement. And the clear and unambiguous language of the 2nd Amendment says that the RKBA "shall not be infringed."

It does NOT say, "shall not be UNREASONABLY infringed." The 2nd Amendment is an absolute statement, an absolute bar against infringing the RKBA in any way. It's just plain silly (IMHO) to argue that the Founders certainly intended to allow "reasonable regulation." Balderdash! If they had intended that, they would have said that. After all, in penning the amendment dealing with search warrants, they used the 'R' word ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ..."), which tells us that they were familiar with the concept of reasonableness (if I may be permitted to create a word) and were fully capable of using it where they intended it to apply. That they did NOT use the 'R' word in the 2nd Amendment, but DID use it in the 4th Amendment, is IMHO extremely significant.

Sadly, nobody has seen fit to appoint me to the SCOTUS, so my views on this won't even buy a cup of coffee at Dunkin' Donuts.

Heller right quick-like ruled out the use of "reasonable scrutiny" in reviewing gun regulations. Then SCOTUS left the rest of the equation open. Until SCOTUS decides what degree of scrutiny is to be applied, what gets done in the lower courts will have little real meaning for the long run.

I remain of the opinion that the entire concept of "reasonable" regulation, as applied to the 2nd Amendment, is a modern construct that is totally at odds with the language of the Constitution itself....

Whether the notion of reasonable regulation as applied to the 2nd Amendment is at odds with the language of the Constitution is one thing, but the notion of regulation in connection with the RKBA is hardly modern (Heller, majority opinion, pp 38 - 40, emphasis added):

Quote:

...Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions. A Virginia case in 1824 holding that the Constitution did not extend to free blacks explained that “numerous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms.” Aldridge v. Commonwealth, 2 Va. Cas. 447, 449 (Gen. Ct.). The claim was obviously not that blacks were prevented from carrying guns in the militia....See also Waters v. State, 1 Gill 302, 309 (Md. 1843) (because free blacks were treated as a “dangerous population,” “laws have been passed to prevent their migration into this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness”). An 1829 decision by the Supreme Court of Michigan said: “The constitution of the United States also grants to the citizen the right to keep and bear arms. But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose.” United States v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed. 1940) (hereinafter Blume). It is not possible to read this as discussing anything other than an individual right unconnected to militia service. If it did have to do with militia service, the limitation upon it would not be any “unlawful or unjustifiable purpose,” but any nonmilitary purpose whatsoever.

In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announcedin the prefatory clause, in continuity with the English right:

“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!”

Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”...

Quote:

Originally Posted by secret_agent_man

...Public safety via weaponry is a modern day issue...

It's hardly a modern issue in connection with RKBA issues. Consider the 1859 decision of the Supreme Court of Texas upholding a state law treating criminal homicide more severely if committed with a Bowie knife or dagger rather than another weapon (Cockrum v. State, 24 Tex. 394 (1859), pp 402 - 403, emphasis added):

Quote:

....The right to carry a bowie-knife for lawful defense is secured, and must be admitted. It is an exceeding destructive weapon. It is difficult to defend against it, by any degree of bravery, or any amount of skill. The gun or pistol may miss its aim, and when discharged, its dangerous character is lost, or diminished at least. The sword may be parried. With these weapons men fight for the sake of the combat, to satisfy the laws of honor, not necessarily with the intention to kill, or with a certainty of killing, when the intention exists. The bowie-knife differs from these in its device and design; it is the instrument of almost certain death. He who carries such a weapon, for lawful defense, as he may, makes himself more dangerous to the rights of others, considering the frailties of human nature, than if he carried a less dangerous weapon....

Good grief, fiddletown! Leave it to you to dredge up a case that officially ruled a knife to be MORE dangerous than a gun. Further proof (as if we needed any) that judges are no smarter than the rest of us, and frequently not even in close competition with a pet rock.

Reminds me of a few years ago when Sportsmans Guide Company was selling 1898 Mausers (no FFL needed due to age). Unlike many places that include the associated "kit" with the firearm, SGC was selling the bayonets as a separate item. I wasn't in the market for an old Mauser, but I had noticed that my brother-in-law had a coffee table display of several historic bayonets that I found interesting/attractive, so I thought I'd buy a Mauser bayonet to start a similar display.

However, SGC decreed that they "couldn't" sell a knife to residents of my state. My on-line order was accepted, then canceled by e-mail the following day. So I called customer service. The woman explained why my order had been canceled, but she couldn't really explain the reasoning (since it is NOT illegal to buy knives on-line in my state). Paraphrased, part of the discussion went about like this:

ME: Look on page xx of the current catalog. What's on the top of the page?

SHE: A Mauser rifle.

ME: And can I buy that, in my state?

SHE: Yes, certainly.

ME: So, let me get this straight: Your company is willing to sell me a completely functional military battle rifle, with which I could potentially kill someone from as far away as maybe a quarter of a mile -- but you won't sell me a bayonet, with which I can't hurt anyone unless I'm within a couple of feet?

Good grief, fiddletown! Leave it to you to dredge up a case that officially ruled a knife to be MORE dangerous than a gun....

Note also that it was a Texas court.

__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper

With all due respect, Cockrum v State was more about keeping weapons out of the hands of certain classes of undesirables such as slaves and thugs for the benefit of well-to-do white folks than it was about public safety.

By contrast, of the public safety risks identified in Heller, emphasis is on keeping any and all firearms out of the hands of convicted felons, the mentally ill and sensitive places. No exception is made in Heller for the possession of weapons that are less dangerous than others, as in Cockrum. The focus is on the safety of the general public, not the danger to individuals from onerous weapons in personal altercations.

The latter is the province of statutes dealing with prohibited weaponry. Insofar as those are found to be in conflict with the Second Amendment's no infringement provision, neither is absolute, and the courts are bound to reach a conclusion.

Superficial rational aside, the court sustained the law based on the erroneous intent of depriving the aforementioned classes of their constitutional rights to protect other classes. It's bad law, and cannot be used as precedent.

...the court sustained the law based on the erroneous intent of depriving the aforementioned classes of their constitutional rights to protect other classes. It's bad law, and cannot be used as precedent.

Really?

[1] And exactly what in the decision in Cockrum indicates that the case has anything to do with, "...depriving the aforementioned classes of their constitutional rights to protect other classes..."?

[2] As far as precedent, of course it would only apply in Texas, and the case is getting pretty long in the tooth. And as far as being bad law, the question for us isn't whether or not it's bad law. It's whether or not public safety is an exclusively modern concern in connection with the RKBA.

what in the decision in Cockrum indicates that the case has anything to do with...depriving the aforementioned classes of their constitutional rights to protect other classes

It is what happened after Cockrum that was of note:

<<<by 1872, the Texas Supreme Court denied that there was any right to carry any weapon for self-defense under either the state or federal constitutions -- and made no attempt to explain or justify why the Cockrum decision was no longer valid. What caused the dramatic change? The following excerpt from that same decision -- so offensive that no one would dare make such an argument today -- sheds some light on the racism that apparently caused the sudden perspective change>>>

Public safety is not to be confused with protecting some segments of society from others. I submit the latter was the goal of anti-weapons oriented legislation during the early years of this country. Gun regulation in the interest of true public safety seems to have gained traction as America changed from a rural society to an urbanized one after WWII and the citizens' familiarity with firearms began to diminish.

Certainly as older generations who grew up with guns have aged and left us, some, indeed, a great many of the newcomers, have come to a different realization about guns and their utility, which has given rise to modern-day public safety issues.

...Gun regulation in the interest of true public safety seems to have gained traction as America changed from a rural society to an urbanized one after WWII and the citizens' familiarity with firearms began to diminish....

Nope. If Cockrum doesn't do it, Adam Winkler in Gun Fight goes into some detail about various public safety gun control laws common here the lat 18th through early 19th centuries. For example, Winkler notes (Winkler, Adam (2011-09-12). Gunfight: The Battle over the Right to Bear Arms in America (p. 117). Norton. Kindle Edition.):

Quote:

...When public safety demanded it, the founding fathers were willing to go even further. In Boston, city leaders determined that the combustibility of gunpowder posed such a danger that all loaded firearms had to be kept out of buildings. A law from 1783 imposed a fine on “any person” who “shall take into any dwelling-house, stable, barn, out-house, ware-house, store, shop, or other building, within the town of Boston, any . . . fire-arm, loaded with, or having gun-powder.” A second provision of the law effectively prohibited keeping a loaded firearm even in one’s own home: “all . . . fire-arms . . . of any kind, that shall be found in any dwelling-house . . . or other building, charged with, or having in them any gun-powder, shall be liable to be seized” and forfeited. Given how time-consuming the loading of a gun was in those days, these two provisions imposed a significant burden on one’s ability to have a functional firearm available for self-defense in the home. Yet there is no record of anyone’s complaining that this law infringed the people’s right to keep and bear arms. Even though the inspiration for this law was prevention of fires, not, say, protecting children from accidental shootings, the lesson remains the same: pressing safety concerns led Bostonians to effectively ban loaded weapons from any building in the city....

And as Winkler later adds (Winkler, Adam (2011-09-12). Gunfight: The Battle over the Right to Bear Arms in America (p. 117). Norton. Kindle Edition):

Quote:

...The individual-rights literature that arose in the wake of Don Kates’s article featured countless confident claims that gun control was a modern, twentieth-century invention. The facts suggest otherwise. The founding fathers had numerous gun control laws that responded to the public safety needs of their era. While our own public safety needs are different and require different responses, the basic idea that gun possession must be balanced with gun safety laws was one that the founders endorsed....

[W]e are not only talking about crime, which obviously is important, but we’re also talking about public safety. . . . [I]n this instance, it’s not only protecting a person from himself but it’s protecting innocent people who get shot every day because handguns are lying around, and that is something that should be of concern to all of us.

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